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Freedom of Information and RSHP's

Posted
on 9 July 2013

The Freedom of Information Act 2000 (FOIA), which came fully into effect in 2005, applies only to "public authorities" as they are defined in the FOI Act itself.

Registered Social Housing Providers (RSHP’s) are currently excluded from this definition and FOIA consequently does not apply directly to RSHP’s. While many RSHP’s do take active steps to make information about their services and activities available for service users and the wider public, there is, as yet, no legal right under FOIA to access information held by RSHP’s.

The implications of FOIA for RSHPs

FOIA gives enforceable rights to individuals and to organisations seeking to access recorded information held by authorities that are subject to the Act and imposes statutory obligations on these authorities to publish certain information and to respond to information requests. The Act also imposes a statutory duty to advise and assist individuals who make, or seek to make requests for recorded information. Relevant authorities must therefore have in place administrative machinery that enables them to comply with their obligations under the Act within specified timelines.

While the Act permits certain requested information to be withheld where one or more of 21 statutory exemptions applies, the experience of most public authorities is that the scope of these exemptions is often narrow. Information that typically has to be released under the Act includes:

Contracts and procurement information

Minutes of internal meetings

Internal correspondence relating to management matters

Details of staff salaries, expenses

Details of business costs and spending

Information regarding complaints handling and internal investigations

Compliance with FOIA necessarily requires the introduction of appropriate administrative systems to ensure that requests are recognised and logged accordingly and that appropriate responses are issued in line with statutory time lines. Establishing appropriate systems inevitably has associated administrative burdens even if relatively few requests are received. Research conducted by the Constitution Unit at University College London suggests that the average cost to organisations of responding to FOIA requests ranges between £250-£300 per request. Some requests inevitably cost considerably more, especially where information is sensitive and there is a need to consult extensively with third parties or staff members who may be affected by disclosure, or where there is a need to seek legal advice.

Many RSHP’s will have understandable concerns about the administrative burden that FOIA imposes and will welcome the opportunity to raise any concerns when the long awaited consultation takes place later this year.

Section 5 Orders

The Ministry of Justice recognises however that the machinery set out in FOIA for adding new organisations to FOIA can be cumbersome and that in the case of RSHP’s the process of extending the scope of FOIA, if indeed it does go ahead, is likely to be particularly unwieldy. This is because, in the case of RSHP’s, FOIA could, by law, apply only to "functions which appear to the Secretary of State to be functions of a public nature". In order to bring a particular RHSP within the scope of FOIA it would be necessary to set out in an Administrative Order, made under section 5 of the FOIA, all the functions exercised by that RHSP and to identify which of those functions are to be subject to FOIA obligations. Drafting these very detailed Section 5 Orders would involve a considerable programme of work for the Ministry of Justice and the resulting information access regime would almost certainly be a confusing one, with RSHP’s having varying disclosure obligations depending on their listed functions. There would be considerable scope for complaints and appeals regarding the extent to which a specific item of information held by any RSHP is, or is not, caught by FOIA according to the terms of the relevant Section 5 Order.

Committing to FOI on a Voluntary Basis?

Perhaps because of a recognition that the formal extension of FOIA to RSHP’s could well be a lengthy and difficult process, RSHP’s, like many other bodies that are not currently subject to FOIA, but which are considered to have a public role or which are recipients of public funds, are being encouraged by the government to adopt FOIA principles on an informal basis in order to enhance transparency and accountability.

RSHP’s that do decide to commit to adopting FOIA principles should, however, exercise considerable caution in order to avoid giving the misleading impression that they are subject to FOIA as a matter of law. There are two broad reasons for advising caution. Firstly, many of the exemptions that can be applied by public authorities which are formally subject to FOIA are unavailable to organisations that sign up to FOIA on a voluntary basis. The result is that organisations that sign up to FOIA principles voluntarily and then seek to withhold sensitive information can appear to be applying exemptions in a highly selective way that is inconsistent with decided case law. This will often result in confusion and distrust on the part of requestors (rather than an appreciation of the organisation’s willingness to share information in the absence of a legal obligation to do so). Secondly, the Information Commissioner’s Office (ICO), which enforces FOIA, has no jurisdiction over FOI requests made to organisations that are not legally subject to FOIA. Requestors who are unhappy about the responses they receive therefore have no rights to take their complaints to the ICO. The lack of redress in these circumstances invariably increases the exasperation felt by requestors and their overall distrust of the arrangements for information access, unless they have been made aware from the outset that FOIA does not apply to their request.

RSHP’s that are considering making a voluntary commitment to transparency principles should therefore take care to ensure that all potential applicants for information understand that FOIA does not apply and that information requests will be considered in light of the organisation’s own information access policy, rather than by reference to the FOI Act. It goes without saying that where such a commitment is made, RSHP’s should ensure that they are able to refer to a suitable policy or set of guidelines for handling information requests in order to ensure an approach which is consistent with FOI principles but which reflects the distinction which needs currently to be made between RSHP’s and organisations that are formally subject to FOIA.

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